LATEST FROM LAW WATCH: FREE VIDEO UPDATE

I cannot allow you any rest from the law. I'm back with an intestacy law change - the extended free housing advice scheme - and compulsory purchase home loss compensation limit increases. Painless and fast.  Just click below.

WILLS: VIDEO WITNESSING TO BE EXTENDED

The law was temporarily changed to allow wills to be witnessed remotely as I reported here on 07 September 2021  (see https://www.breakinglaw.co.uk/search/label/wills). This change was aimed at assisting would-be will makers who could not organise the two required witnesses to breath down their necks in the same room as they were signing up, on account of Covid-19. But the temporary law was due to run out at the end of this month.

Today, legislation has been laid before Parliament which will extend the temporary provisions until 31 January 2024.

PROBATE FEE INCREASE

The increase in the fee for applying for probate (where there is a will) or letters of administration (where there is no will) which I predicted at https://www.breakinglaw.co.uk/search/label/probate is to take effect on 26 January 2022 (see The Non-Contentious Probate Fees (Amendment) Order 2021 SI 2021/1451). 

The new fee will be £273 whether you are applying in person or through a professional such as a solicitor. Get the application in before 26 January 2022 and money will be saved.

SMALL PRINT WIN, REPOSSESSIONS AND LATEST IN THE LAW: VIEW FREE VIDEO

In my latest video in the Law Watch series, you can discover the latest legal developments and you don't even have to open a law book. Find out about the High Court judgment which extricated a company from a £180,000 claim because contractual small print was hidden away; why county court repossession cases are set to be heard more quickly; the simplification in winding up a deceased's estate where no inheritance tax will be payable; and how making a will can be fun. 

Covid-19:Wills: New Law on Witnesses

A testamentary trio. That's what the law of England and Wales requires to make a will valid. The willmaker and two witnesses, all physically together at the same time and able to see and smile at each othet. But the pandemic has made this impossible in many cases. Some wills have been signed up virtually using special software. Opinions are divided on whether or not this satisfies legal requirements. Have no fear. The law is changing retrospectively under the Wills Act 1837 (Electronic Communications)(Amendment) (Coronavirus)Order 2020 SI 2020/952 made today 07 September 2020 and coming into force in three weeks' time. Wills made after 30 January 2020 and for two years from then will be legally okay if video witnessed. This period may be shortened or lengthened in due course.

Spouse To Get More on No-Will Death

Some people find making a will  as appealing as electrocuting themselves. Does no will mean that your property goes to Boris or the fox at the bottom of the garden? No. The intestacy laws for England and Wales take over.

You are survived by a spouse or civil partner (which now includes an opposite sex civil partner) but no children. They scoop the lot.

You are survived by a spouse or civil partner PLUS children (even mature and ugly children). The first £250,000 goes to the spouse or civil partner and the rest is divided as to one-half to them and one-half among the children. The change in the law relates to that £250,000. For a death occurring on or after 6 February 2020, the £250,000 goes up to £270,000.  But note that if your home is owned jointly by you and your spouse or civil partner as joint tenants then your interest will automatically pass to them, so bypassing your estate, and will not be taken into the reckoning in the £270,000 and one-half of the rest. They will get the house on top. For the change, you can give thanks to the Administration of Estates Act 1925 (Fixed Net Sum) Order 2020 (SI 2020/33).

No surviving spouse or civil partner but children. The children get the lot.

No surviving spouse or civil partner and no children. Parents get the lot and, where neither is still with us, brothers and sisters or their descendants collect the lot. And so on down to half-uncles and aunts or their descendants and if everyone has disappeared off the face of the earth, then every penny goes to the state. And that, I suppose, would interest Boris.

Family members and certain others who miss out or don't get what they regard as a reasonable deal under the intestacy laws, can make a  legal challenge in the same way as when they fail to score adequately or at all under a will. 

Plenty more on how it all works and what you can do if you are aggrieved by a will or the intestacy laws in my book Breaking Law.

Will Fiddling Avoidance Kit

A County Court judge sitting in London has just declared that the will of a former bus driver and then lollipop man was a forgery. Who forged it?  His widow, according to the judge. The real will left her £25,000. The forgery raised the figure to £550,000 which was much better and the widow claimed that she had found it in the loft after the man's death, inside a Doritos bag. The most striking error in the forgery was that the will was described as "her" last will (which I suppose it was except it was meant to be "his" last will).

Now if you have read Breaking Law - and if you haven't, shame on you  - you will know how you may frustrate probate being granted to a forged will and how you will certainly frustrate your estate being wound up on the basis that you had not made a will. Register the real thing with the Probate Registry for a one-off fee of £20 and a check will be made there before probate is granted on the strength of a forgery or letters of administration are granted on the strength of a declaration that you didn't make a will and the intestacy laws apply. Much more in Breaking Law. Did I mention that? 

Will Challenge by Adult Children

If you chose to pack up on planet earth without making a will or make a will leaving out someone who might have expected  a bonanza, that's your privilege - you may think. In fact, if that someone is aggrieved by your omission they might be able make a claim against your estate. The milkman or postman? Only a specified class of persons : principally, spouses and partners; former spouses and partners (unless a court order on break up has excluded the right to do so); those who were being maintained by the deceased when they died. And a child which includes a toddler as well as a great big old and ugly child?

The Supreme Court has just given its eagerly awaited judgments * on how claims by adult children should be decided by the court and on principles which should be applied to all claims. In the case in question, a mother had left her daughter out of her will. Her estate was worth around £486,000. Apart from a modest gift to a benevolent society connected with her late husband's employment, she had left the lot to a group of charities in which she had shown little or no 
interest while she was alive. She had fallen out with the daughter. They had been estranged for 26 years and three attempts at reconciliation had foundered.

After court hearings including appeals which have been going on for around 11 years (!!!), the Supreme Court decided that the daughter should be awarded £50,000 out of the mother's estate which is what a district judge at the very beginning had decreed. For her part, the daughter had been after one-half of the estate and the charities (anxious that no precedent should be set which would lose them a fortune in bequests in other cases), argued that the daughter should have nothing.  

This is what the Supreme Court said -

• In a claim against a estate - it would be make under the Inheritance (Provision for Family and Dependants) Act 1975 - the court will usually have to consider whether the will or, if no will, the intestacy laws, make reasonable provision for the  claimant (what it was reasonable for the claimant to receive) and, if not, what reasonable provision ought to be made for them now.
• In deciding whether reasonable provision has been made the court is NOT deciding whether the deceased acted unreasonably. The court might say that there were very good reasons for the deceased' wishes at the time but what the claimant ends up with, if anything, is not reasonable. That might be, for example, where the claimant's circumstances have altered and the deceased did not know about them or did not have time to change their will. Conversely, the deceased may have acted out of spite but nevertheless made reasonable provision for the claimant.
• The state of the relationship between the deceased and the claimant will still kick in. In considering both matters mentioned above, questions arising from that relationship will be applicable as will be questions relating to the needs of the claimant and issues concerning competing claims of others.
• The date for assessing whether reasonable provision has been made and, if not, what it should be is the date of the hearing of the claim and not the date the will was made or the date of death. So the court is looking at circumstances as they are when a decision is being made.
• A claimant other than a spouse or civil partner can only claim what is needed for their maintenance. This is not limited to subsistence level. The maintenance needed not be by way of regular income payments. It will very often be more appropriate if the claimant gets a lump sum from which both income and capital can be drawn over the years. Or the claimant might be awarded a lump sum to buy a car to get to work. There is also no reason why housing should not be provided which could be by way of a right for the claimant to live in a particular property for the rest of their lifetime. 

If leaving out from a will a child or someone else who might make  a claim, you can set out your reasons in a document to go with the will. The mother in the case before the Supreme Court did just that and what she said was taken into account. For much more on this and additional information about who can make a claim, how, the relevant time limit and the intestacy laws, see Breaking Law at chapter 32.

* The case is Ilott v The Blue Cross and others [2017] UKSC 17

I WILL, I WILL

"It's time to make a will. They'll be trouble when you kick the bucket if you don't."

"I'm washing my hair. I've got to pick up the leaves, I mean I've got to get ready for the American Presidential election results, I mean my throat is so sore, I can't think straight..."

I know, I know. A bit like putting off an appointment with the dentist. The spur this month to getting on with it is the Will Aid Scheme. Supporting solicitors will prepare you a will in return for a donation to charity. The recommended donation is £95 per will or £150 for mirror wills- you can't see your face in them but one will mirrors the other where say spouses or partners are making them. Go to willaid.org.uk

Without a will, the intestacy laws kick in. You might not like them. You are survived by a spouse or civil partner but no children? The spouse or civil partner scoop the lot. You are survived by a spouse or civil partner plus children (the big and ugly ones included)? The first £250,000 goes to the surviving spouse or partner and the rest is divided as to one-half to them and the other half to the children. And so on. If the family home is jointly held as 'joint tenants' then the surviving joint owner automatically gets the deceased's share on top of the intestacy entitlement though that is a scenario which can be easily changed.

And if you want to leave someone out of the will who had expectations, then you can put a statement with the will saying why which would be considered by the court of they made a challenge to the will while you looked on from upstairs.

A DIY will? It's too easy to mess it up. Not recommended.

For more, go to Breaking Law at chapter 32.

And cancel the hair wash.

PROBATE GOING ONLINE

I'm not sure if you can yet eat and park your car online, but it will come. After all,  we already have bankruptcy online and online court hearings and divorce applications will be with us in due course. Whilst we wait for this to come about, they've thought of another online activity. Applying to a probate registry for probate or letters of administration following a death.

An application for probate is made where the deceased left a will. If no will was left then the laws of intestacy dictate who gets what and the application is then for letters of administration. Once the application is granted to whoever is entitled to make it, the deceased's estate can be wound up.

Winding up the estate is not as daunting as is often believed. Unless the deceased left millions or there are complications such as legal challenges to the will or on how the intestacy rules would work or in locating assets, the application for probate or letters of administration can be made by you personally without incurring the fees of a lawyer or other professional.  You'll find a helpful guide on how to go about it at GOV.UK Taking legal advice on drawing a will in the first place is another matter. It is highly desirable.

The intention is that ultimately all applications for probate and letters of administration will be made online. For the moment they will be trying out the software involved with a pilot project as from 1 November 2016. From those making online enquiries about procedure to the Probate Service, around two a day in relatively straightforward cases will be invited to go ahead on an online basis. That number will progressively increase. To accommodate this, the Non-Contentious Probate (Amendment) Rules 2016 have been made but this is not recommended reading unless you are a lawyer or funeral director.

For info about how to challenge a will or how intestacy works where  a relative of yours has passed away - and, also how to counter the possibility of such a challenge - take a look at Breaking Law, chapter 32.

THE WILL TO LITIGATE

A big increase is reported today in children over 18 challenging the will of a parent.  It's not only a child (young, old, fat or thin) who may be able to ask for something or more under the Inheritance (Provision for Family and Dependants) Act 1975 but a number of others. They include a spouse or partner, a former spouse or partner or anyone who was being wholly or partly supported by the deceased immediately before death. They can also go to court if there was no will and so the intestacy laws kick in but they reckon they operate unfairly against them.

Court proceedings have to be started within six months of probate (in the case of  a will) or letters of administration (in the case of no will). The court has the power to extend this time limit.

Are you dissatisfied or do you want to try and protect against a successful challenge to your will once you have passed on? Take a look at Breaking Law, chapter 32.

WILL CARE

It's not a good idea to prepare a will for someone else when it says you will scoop most of their property. In a case last week, the High Court ripped up the will of an accident victim who had been awarded over £1 million in damages. The judge was satisfied that the victim had not sufficiently understood its contents.

The will had been drawn up by the victim's live-in carer who was paid by the local authority and gave the carer 95% of the estate. It had not been read out to the victim and gifts to family members and charities which had been made in a first will nine months earlier had been completely removed. Under the court's order, the earlier will takes effect.

In the world of wills there's too much scope for underhand activity - new wills being drawn up at the behest of those who exercise too much influence and wills going missing so that a previous will is implemented or the intestacy laws kick into action as they apply when there is supposedly no will.  

A will can be deposited with the Probate Registry and kept there for a one-off fee of £20. That cuts down the opportunities for fraudulent activity after your death. An earlier will can't make it and neither can a claim that there was no will.